TerraLex Cross-Border Guide to Cross-Border Copyright Guide

Article 2 of the Copyright Act defines works as the author’s own intellectual creations, and contains a list of protected works in literary, scientific and artistic domain. This list is not exhaustive.

Literary works

The Copyright Act protects literary works, such as written works, speeches and computer programs. Literary works include all individual linguistic creations such as scientific writings, lectures, prose and plays, including libretti for operas. Excluded from copyright protection are official publications such as court decisions.

Musical works

Musical works are works consisting of music, without any words or actions that are intended to be performed with the music. Music is defined as a combination of sounds for listening to. It is not the same as mere noise.

Pantomimic works

By pantomimic works (including works of dance), thoughts, feelings and stories are expressed through individual movements and gestures.

Artistic works

Artistic works include works of architecture and of applied art and drafts of such works that are of an individual characteristic and have a distinctive element. Mere functional features are not protected by copyright.

Photographic works

Photographic works are protected (including works produced by processes similar to photography) which express a particular artistic conception.

Cinematographic works

Cinematographic works are protected (including works produced by processes similar to cinematography) which contain an intellectual creation.

Illustrations of a scientific or technical nature

Illustrations of a scientific or technical nature (such as drawings, plans, maps, sketches, tables and three-dimensional representations) are protected.

Articles 3 and 4 of the German Copyright Act contain further types of works that can be protected:

Adaptations

Translations and other adaptations of a work which are the adapter’s own intellectual creations are protected as independent works without prejudice to the copyright in the adapted work. The insubstantial adaptation of an unprotected musical work is not protected as an independent work.

Collection works

Collections of works, data or other independent elements which by reason of the selection or arrangement of the elements constitute the author’s own intellectual creation (collections) are protected as independent works without prejudice to an existing copyright or related right in one of the individual elements.

Database works

A database work within the meaning of the German Copyright Act is a collection whose elements are arranged systematically or methodically and the individual elements are individually accessible by electronic or other means. A computer program (Article 69a Copyright Act) used in the creation of the database work or to provide access to its elements does not constitute an integral part of the database work.

Furthermore, Art. 69a of the German Copyright Act contains a regulation for protection of computer programs.

Computer programs

Computer programs are programs of any form, including the drafts and their preparatory design material. Protection applies to any form of a computer program if it represents individual works (ie they are the result of the author’s own intellectual creation).

This question depends upon the agreement between the author as rights holder and a rights holder who has been granted rights by the author. Every rights holder can be granted the right to use a work in a particular manner, but only the author has further rights such as moral rights (see 2.4 below) and some exclusive rights with regard to the work.

The German Copyright Act guarantees the author rights concerning his or her intellectual and personal relationships to the work and in respect of the use of the work. Those are the moral rights of authors and exploitation rights.

The author has the right to exploit their work in material form, which includes:

• the right of reproduction
• the right of distribution
• the right of exhibition.

The author also has the exclusive right to communicate their work to the public in non-material form, which includes:

• the right of recitation, performance and presentation
• the right of making the work available to the public
• the right of broadcasting
• the right of communication by video or audio recordings
• the right of communication of broadcasts and of works made available to the public.

Further rights of the author are:

• right of access to copies of works
• right of resale
• right of remuneration for rental and lending.

In case of infringement of copyrights, a rights holder has the following rights:

• right to require cessation of infringement and to damages
• notification
• claim to destruction, recall and release of copies
• pecuniary compensation
• right of information
• entitlement to presentation and inspection.

Yes. The German Copyright Act sets out the following moral rights: - right of publication

• recognition of authorship
• right to prohibit the distortion or any other derogatory treatment of their work.

Moral rights are applicable to all kind of protected works.

Rights are protected while the author is alive plus 70 years from the time of their death. This rule is valid for works where their author had not been dead for over 70 years in 1965.

An author’s moral right to be identified as the author, to object to derogatory treatment or to privacy lasts for the life of the author plus 70 years.

The first owner of the copyright is the author. This even applies if a work was created by a person in the course of their employment. The employee is the author and first owner of the copyright. However, there can be an agreement that the employer has a right of transferring rights of use from the employee. With regard to computer programs, such a right to transfer is granted by Art. 69b of the Copyright Act. The author is the creator of the work. That is the only definition German law provides.

Copyright is an unregistered right in Germany; it arises automatically upon creation of the work. There is no registration system that is comparable to the registration of trade marks or patents. However, the author may register his or her work with the German Office for Patents and Trademarks (DPMA) under a pseudonym or even anonymously. Such a registration is useful with regard to the duration of copyright. Furthermore, there is the possibility of a notarial deposit of the protected work. The notarial deed can give proof of the authorship and the date of creation of the protected work. A copyright notice (eg ©) together with the author’s name creates a presumption that the named person is the author.

No special form has to be met to validly transfer, assign or license copyright. However, a contract by which the author grants rights in respect of unknown types of exploitation, or where he/she undertakes the obligation to do so, must be drawn up in writing. For purposes of evidence, an assignment of copyright must be in writing, signed by or on behalf of the copyright owner.

No. Moral rights can be waived but they cannot be assigned.

Owners of copyright can take legal action if any of their exclusive rights have been infringed. This can be infringement of rights of exploitation or appropriation of a work under its own name (plagiarism). Often rights are infringed by producing and purchasing unlawful copies of works.

German law does not differentiate between primary and secondary infringement as, for example, UK law does.

As stated above, German law does not differentiate between primary and secondary infringement.

The decision of the German Federal Court of Justice (BGH) ruled that the operator of a homepage does not infringe copyrights if they are embedding on their homepage, via “framing”, content that is available on another homepage for every user of the internet with the permission of that content’s rights owner (Decision dated 9 July 2015, Case I ZR 46/12). However, that case did not deal with the question of what will apply if the content is provided on another homepage without permission of the copyright owner.

An infringement of copyright is actionable by the copyright owner. When copyright is licensed, the authority to bring an infringement action depends on the type of licence involved. An exclusive licence authorises the licensee to exercise a right which would otherwise be exercisable exclusively by the copyright owner. One such right generally is the right to bring an infringement action.

A non-exclusive licensee cannot bring infringement actions unless specifically agreed otherwise with the author. Without that specific agreement, only the author (who remains the copyright holder) is allowed to bring infringement actions.

The German Copyright Act in conjunction with the German Code of Civil Procedure provides the following remedies for the rights holders: - interim injunction (including cease and desist orders, search orders, freezing orders and disclosure orders)

• bringing an action
• delivery up of infringing articles
• seizure or forfeiture of infringing articles
• customs seizure actions.

The German Copyright Act does not provide any specific remedies for online copyright infringement. However, the ECJ ruled in its case C-314/12 that internet providers have to block illegal websites if there is a judicial order. Thus, where it appears that a website is displaying illegal infringing material, rights holders can seek an injunction from the court ordering the provider to block the website. However, it is established under German common law that access providers are not obliged to establish barriers for music that is offered unlawfully (OLG Köln, decision dated 18 June 2014, case 6 U 192/11).

There are a number of criminal acts under the Copyright Act. The sanction for committing a criminal offence in relation to copyright is likely to be a fine and/or a prison sentence. If an offence is committed by a company and it is proven that an individual officer of the company consented to committing the offence, that officer can also be liable for the criminal act. Each offence requires a level of intention, knowledge or belief on behalf of the potential culprit, and each carries various penalties:

The time limit is three years to bring a breach of copyright. Time begins to run from the end of the year the damage is suffered and of the rights holder’s knowledge of the infringement. Without such knowledge, the limit is 10 years. Interim injunctions must be brought immediately upon rights holders becoming aware of the infringement. The time limit for filing a criminal complaint is three months. Time begins to run from the date of knowledge of the copyright infringement.

The general rule in Germany is that the unsuccessful party pays the statutory attorneys’ fees and disbursements of the successful party and court costs. This even applies for costs of a cease and desist letter and in many instances even covers all costs incurred.

Civil law matters can be brought to ordinary courts. If the claim is worth less than €5,000, the action has to be brought to the local court. If the claim is worth €5,000 or more, action has to be brought to the regional court. Recourse to the courts is permitted in respect of all legal disputes by means of which a claim is asserted on account of a legal relationship regulated under the Copyright Act. As regards copyright litigation matters resulting from employment or service relationships which have as their object only claims for payment of an agreed remuneration, recourse to the labour courts and the administrative courts shall remain unaffected or shall even prevail.

Customs seizure A copyright holder may request detention and seizure of infringing copies by the Customs authorities.

Arbitration Board under the Law on the Administration of Copyright

The Arbitration Board under the Copyright Administration Law mediates disputes between collecting societies and users of copyright works such as concert organisers, discotheque operators, broadcasting organisations or producers of phonograms. The Arbitration Board is integrated into the German Patent and Trade Mark Office (DPMA). If the parties cannot find an amicable agreement in front of the Arbitration Board, the Board submits a settlement proposal to the parties. If this proposal is not contested, its effect is similar to a court judgment.

Criminal proceedings

Criminal proceedings can be brought on the grounds described in 5.3 above, and pursued through criminal courts.

The German Patent and Trade Mark Office (together with the Federal Cartel Office – Bundeskartellamt) is the supervision authority of collecting societies that are responsible for promoting and/or enforcing copyright. Collecting societies are subject to government supervision since they have a monopoly position and hold rights in trust. The German Patent and Trade Mark Office acts as the supervisory authority on the basis of the Copyright Administration Law. There are no further agency bodies that actively enforce copyright. The German police or Public Prosecution Department will target criminal activity, but it is up to the rights holder or the rights management agency to spot infringing work and take action.

To use copyright material without infringing the rights of another, you usually need to gain the permission of the rights holder. However, as a result of the practical difficulties and administrative burden for copyright owners in granting licences individually to all those seeking them, copyright holders participate in collection schemes by signing up as members of the collection societies. Once members, they either transfer rights to the collecting society, which then administers the rights for them, or appoint the society as their agent.

The key collecting societies in each sector are as follows:

In Germany, copyright levies have to be paid for usage and copying of works protected by copyright law. These are payable as an additional charge together with the surcharge on the price for the devices or media with which copies can be made. The copyright levy is mostly payable as a lump sum, which means that the customer does not need to pay a levy for every single use of the relevant device/media.

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